Subsection 30.11(1) of the Canadian International Trade Tribunal Act[1] provides that, subject to the Canadian International Trade Tribunal Procurement Inquiry Regulations,[2] a potential supplier may file a complaint with the Canadian International Trade Tribunal (the Tribunal) concerning any aspect of the procurement process that relates to a designated contract and request the Tribunal to conduct an inquiry into the complaint. Subsection 30.13(1) of the CITT Act provides that, subject to the Regulations, after the Tribunal determines that a complaint complies with subsection 30.11(2) of the CITT Act, it shall decide whether to conduct an inquiry into the complaint.

This complaint relates to a Request for Proposal (RFP) for diesel generator sets (Solicitation No. ET959-160116/001/B issued by the Department of Public Works and Government Services (PWGSC).[3] The contract was awarded to Cummins Est Du Canada SEC (Cummins).

Toromont Cat alleged that PWGSC improperly found Cummins’ bid to be compliant, as some of the mandatory requirements were not commercially or technically viable. As a remedy, Toromont Cat requested that all bids be re-evaluated and, if no bid was found to be compliant with the RFP, that a new solicitation be issued.

The Tribunal has reviewed the complaint filed by Toromont Cat. The Tribunal finds that the complaint was not submitted within the time frames specified in subsection 6(1) of the Regulations. Moreover, as set out in the reasons below, the complaint does not disclose a reasonable indication of a breach of the any of the trade agreements listed at paragraph 7(1)(c). Consequently the Tribunal cannot conduct an inquiry into this complaint.

PWGSC issued the solicitation on October 15, 2015, and the solicitation closed on December 14, 2015.

On November 12, 2015, Toromont Cat wrote to PWGSC to request clarification on certain mandatory requirements contained in the RFP.

PWGSC responded to Toromont Cat’s concerns in its e-mail of November 18, 2015, and also through the publication of amendment No. 001 to the RFP (issued on November 16, 2015), amendment No. 002 to the RFP (issued on November 30, 2015) and amendment No. 003 to the RFP (issued on December 2, 2015).

Toromont Cat submitted its bid to PWGSC on December 11, 2015.

On January 7, 2016, PWGSC informed Toromont Cat that its proposal was non-compliant because its bid did not meet certain mandatory requirements and that Cummins was the winning bidder.

On January 11, 2016, Toromont Cat wrote to PWGSC to challenge the award of the contract and to request confirmation and evidence demonstrating that Cummins had met all the mandatory requirements.

On January 12, 2016, PWGSC responded to Toromont Cat and declined to provide the requested documentation.

On January 20, 2016, Toromont Cat filed this complaint with the Tribunal.

Subsection 6(1) of the Regulations provides that a complaint shall be filed with the Tribunal “. . . not later than 10 working days after the day on which the basis of the complaint became known or reasonably should have become known to the potential supplier.” In other words, a complainant has 10 working days from the date on which it first becomes aware, or reasonably should have been aware, of its ground of complaint to either object to the government institution or file a complaint with the Tribunal. If a complainant objects to the government institution within the designated time, the complainant may file a complaint with the Tribunal within 10 working days after it has actual or constructive knowledge of the denial of relief by the government institution.

In its complaint, Toromont Cat did not contest PWGSC’s finding that its own bid did not meet all the mandatory requirements of the RFP. Rather, Toromont Cat asserted that mandatory requirements 6.3, 9.6, 9.8, 9.11 and 9.12 (the requirements in issue) were impossible to meet, as they were either commercially or technically not viable. As a result, Toromont Cat argued that Cummins could also not have met the requirements in issue and should not have been awarded the contract resulting from the RFP.

The requirements in issue which Toromont Cat now asserts were impossible to meet were made available to Toromont Cat on October 15, 2015, when the RFP was issued. It is well established that, if a potential supplier believes that the criteria set out in an invitation to tender is overly stringent or impossible to meet, it must file a complaint in a timely manner. A complainant may not accumulate grievances only to present them after its bid is rejected.[4]

The Tribunal notes that Toromont Cat did identify several potential issues with the RFP, and the mandatory criteria in particular, in an e-mail sent to PWGSC on November 12, 2015.[5] However, PWGSC responded to those concerns in its reply of November 18, 2015, and through the publication of the amendments to the RFP on November 16, November 30 and December 2, 2015. Upon reviewing PWGSC’s reply and the responses in the relevant amendments, Toromont Cat should have been aware of any outstanding issues that it believed remained in the RFP and in the requirements in issue in particular.

Toromont Cat submitted its bid on December 11, 2015, prior to the deadline for the submission of proposals of December 14, 2015. It is assumed that Toromont Cat reviewed the amendments and PWGSC’s reply before submitting its bid. As such, the Tribunal finds that the last possible date on which Toromont Cat could have become aware of any outstanding problems with the requirements in issue, and PWGSC’s position with respect to its concerns, was December 11, 2015.

It follows that Toromont Cat would have had to file the complaint no later than 10 working days following December 11, 2015, or by December 29, 2015.[6] Given that the complaint was not filed until January 20, 2016, the Tribunal finds that it was not filed in accordance with the timelines specified in section 6 of the Regulations and that it will therefore not inquire into the complaint.

Even if the complaint were not time-barred, the information before the Tribunal does not disclose a reasonable indication that the procurement has not been conducted in accordance with the relevant trade agreements, as set out in paragraph 7(1)(c) of the Regulations, which are the North American Free Trade Agreement,[7] the Agreement on Internal Trade,[8] the Agreement on Government Procurement,[9] the Canada‑Chile Free Trade Agreement,[10] the Canada-Peru Free Trade Agreement,[11] the Canada-Colombia Free Trade Agreement,[12] the Canada-Panama Free Trade Agreement[13] and the Canada-Korea Free Trade Agreement.[14]

The Tribunal has previously stated that a ground of complaint must have some evidentiary basis to suggest that there was a breach of the relevant trade agreements.[15] Beyond an assertion made in its complaint, Toromont Cat did not provide any documentation to substantiate its claim that PWGSC improperly evaluated Cummins’ bid in finding that it met the requirements in issue. Moreover, while Toromont Cat insisted that it should be provided with documentary evidence to prove whether or not Cummins met the requirements in issue, the Tribunal has repeatedly held that the purpose of a complaint is not to allow complainants to engage in a “fishing expedition” to find evidence to use in a complaint.[16]

Therefore, the Tribunal finds this ground of complaint to be entirely speculative and does not consider that it reasonably indicates that PWGSC awarded the contract in a manner that was not in accordance with the applicable trade agreements.

[10]. Free Trade Agreement between the Government of Canada and the Government of the Republic of Chile, 1997 Can. T.S. No. 50, online: Department of Foreign Affairs, Trade and Development <http://www.international.‌gc.ca/trade-agreements-accords-commerciaux/agr-acc/chile-chili/menu.aspx?lang=en> (entered into force 5 July 1997). Chapter Kbis, entitled “Government Procurement”, came into effect on September 5, 2008.